KAREN A. RITTINGER, Plaintiff-Appellee Cross-Appellant,
HEALTHY ALLIANCE LIFE INSURANCE COMPANY, doing business as Anthem Blue Cross and Blue Shield; ANTHEM UM SERVICES, INCORPORATED, Defendants-Appellants Cross-Appellees.
Appeals from the United States District Court for the
Southern District of Texas
HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges
case involves a bariatric surgery gone wrong and the ensuing
clash over insurance coverage. Given our highly deferential
standard of review, we cannot say that Anthem, the plan
administrator, abused its discretion in either the first or
second internal appeal. Because we agree with Anthem,
Rittinger's cross-appeal (to determine the exact dollar
amount of damages she is owed) is moot.
Rittinger was the beneficiary of an ERISA-covered plan.
Healthy Alliance Life Insurance Company offered the plan and
Anthem Blue Cross Blue Shield (Anthem) administered it.
October 2014, Rittinger underwent bariatric surgery.
Complications arose requiring follow-up surgery and intensive
care. Anthem denied preauthorization for both the bariatric
surgery and the follow-up surgery, writing, "We cannot
approve coverage for weight loss surgery (bariatric surgery)
or hospital care after this surgery. Bariatric or weight loss
surgery is an exclusion in your health plan contract."
Paragraph 33 of the Health Certificate of Coverage
(Certificate) deals with bariatric surgery:
[The plan does not cover] bariatric surgery, regardless of
the purpose it is proposed or performed. This includes but is
not limited to Roux-en-Y (RNY), Laparoscopic gastric bypass
surgery or other gastric bypass surgery . . . . Complications
directly related to bariatric surgery that result in an
Inpatient stay or an extended Inpatient stay for the
bariatric surgery, as determined by Us, are not covered.
there is an exception at the end of Paragraph 33: "This
exclusion does not apply to conditions including but not
limited to . . . excessive nausea/vomiting." Since none
of Rittinger's preauthorization information mentioned
"excessive nausea/vomiting," Anthem cited Paragraph
33's exclusion and denied coverage.
next month, Rittinger's husband emailed Anthem. He
explained that he had "Medical Power of Attorney . . .
to speak on behalf of [his] wife[, ] Karen Rittinger."
He stated that he "would like to file an appeal for her
hospitalizations which began on 10/15/2014." Anthem
treated this as an official first-level appeal. After
gathering more information from Rittinger and her surgeons
and obtaining an independent peer review, Anthem again denied
April 2015, Rittinger hired counsel and filed a second-level
internal appeal. She submitted materials about her medical
history and the surgery. Emphasizing Paragraph 33's
exception for bariatric surgery where there is
"excessive nausea/vomiting," Rittinger provided
records showing: (1) she suffered from Gastroesophageal
Reflux Disease (GERD) and esophagitis, (2) GERD/esophagitis
is linked to nausea and vomiting, and (3) she underwent
surgery to address these problems.
convened a five-person "Grievance Advisory Panel"
(GAP) to evaluate Rittinger's second-level appeal. The
GAP quoted Paragraph 33, concluded it excluded
Rittinger's bariatric surgery, and affirmed the denial of
exhausted her internal remedies, Rittinger sued. Both parties
moved for summary judgment. Since neither side disputed that
the plan properly delegated discretion to Anthem to
administer the plan, the district court correctly reviewed
the two internal appeals for abuse of discretion. It held
that Anthem did not abuse its discretion when it treated Mr.
Rittinger's email as a first-level appeal. But the
district court held that Anthem did abuse its
discretion in the second-level appeal. It believed
Anthem's construction of the plan's terms directly
contradicted their plain meaning. It also thought
Rittinger's evidence linking GERD/esophagitis to
nausea/vomiting deserved more weight.
district court had jurisdiction over this case under ERISA,
29 U.S.C. §§ 1001 et seq. We have
jurisdiction over Anthem's appeal under 28 U.S.C. §
1291. Rittinger also filed a cross-appeal, arguing we should
state the exact dollar amount of damages she is owed. But
because we hold that Anthem did not abuse its discretion in
either internal appeal, her cross-appeal is moot.
review a district court's grant of summary judgment in an
ERISA case de novo. Here, Anthem had "all the powers
necessary or appropriate . . . to construe the Contract [and]
to determine all questions arising under the
Certificate." Rittinger never challenged the
clause's enforceability in the district court. Because
"[f]ailure to raise an argument before the district
court waives that argument, " Rittinger has forfeited this
issue. Anthem's fiduciary discretion was valid.
argues that our recent en banc decision in Ariana
M. requires us to review Anthem's denial
de novo instead of for abuse of discretion. But Ariana
M. only governs cases in which a plan does not validly
delegate fiduciary discretion. And even though Texas Insurance
Code § 1701.062 bans insurers' use of delegation
clauses in Texas, Missouri law governs this case. As Anthem
observes (and Rittinger fails to contest), this case involves
a plan sold in Missouri by a Missouri insurer to a Missouri
employer. Moreover, the Certificate of Coverage specifically
states that the "laws of the state in which the Group
Contract was issued [Missouri] will apply." Ariana
M., therefore, does not control.
plan administrator has discretion, as here, we review the
administrator's denial of benefits deferentially for
abuse of discretion. We have clarified this standard, saying
that a "plan administrator abuses its discretion where
the decision is not based on evidence, even if disputable,
that clearly supports the basis for its
denial." Yet "[i]f the plan fiduciary's
decision is supported by substantial evidence and is not
arbitrary or capricious, it must prevail." "Substantial
evidence is 'more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable
mind might accept as adequate to support a
argues that Anthem abused its discretion when it treated her
husband's email as a formal first-level appeal. The plan
prescribes "How To File a First Level Appeal or
Grievance for Review." But nowhere does it supply an
email address where appeals can be directed. Rittinger
contends that, given its elaborate appeals procedures, Anthem
had no wiggle room to interpret other inquiries as appeals.
argues that it had wide discretion in administering the plan.
Moreover, treating this as an appeal did not prejudice
Rittinger, nor does she argue that it ...